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Wednesday, March 12, 2014

Who will hear my child support/custody case?

A question of jurisdiction and venue:

I was recenlty asked the following question in an online forum:

I live in Virginia and my husband and I separated 7 years ago. We have a child custody agreement but no child support agreement; I want to file for child support and to change the custody agreement but I don't live in the county where it was filed. Should I file for the custody case to be transfered to the county I will be filing for child support? Should I transfer it first and then file for support?

Venue vs. Jursidiction...just how does this work?

Answer:
Great question! We lawyers talk about jursidiction and venue all the time...well, more appropriately, jurisdiction. Rarely is venue an issue in a divorce/child support case. The proper location for divorce is circuit court. The proper venue for custody and support issue is Juvenile and Domstict Relations Court (J&DR), a subset of circuit. There you go -- venue solved.

The question is -- did you appeal you original J&DR determination? An appeal from J&DR goes to Circuit -- so you need to make sure the case is really still in J&DR.

That notwithstanding, any J&DR court in VA has jurisdiction to hear the case. If your ex does not want you to bring the case where you are now, he can file a "forum non-conveniens". Usually, that is reserved for jurisdiction arguments, but it can be argued for venue, too -- but only if filed timely after you bring the suit.

Your case for hearing it local to you is further bolstered if the child (children?) live with you now. But this is just icing on the cake (or a handy way of smushing a forum-non-conveniens filing).